If there is no specific law requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. The need for vaccination should be assessed on a case-by-case basis, taking into account the nature of the workplace and the individual circumstances of each employee.
There are medical reasons why some people may not be able to receive a COVID-19 vaccination, or may choose not to in their circumstances, including because of protected attributes such pregnancy or disability. Additionally, at present, many younger Australians have not been eligible for certain COVID-19 vaccinations at all, or for shorter periods of time than older Australians.
The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in employment. ‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.
A strict rule or condition that mandates COVID-19 vaccinations for all staff, including people with certain disabilities, medical conditions or who are pregnant, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA.
Indirect discrimination and reasonableness
In broad terms, indirect discrimination occurs when a person is required to comply with a general requirement or condition (such as mandatory COVID-19 vaccinations), and they are unable to do so because of a protected attribute, for example because of their disability, and it has the effect of disadvantaging them.
Under the SDA, the DDA, and the ADA indirect discrimination may occur if an employer requires, or proposes to require, that a person comply with a general requirement or condition.
This means that an employer does not need to seek to enforce a mandatory COVID-19 vaccination policy (for example, by way of termination, suspension, or performance management) to engage in unlawful discrimination. It is a defence to a claim of indirect discrimination if the condition or requirement is shown to be ‘reasonable’ in the circumstances of the case.
Whether a court considers it ‘reasonable’ for an employer to mandate COVID-19 vaccinations is likely to be highly fact dependent, considering the workplace and the employee’s individual circumstances. It may consider information such as:
- The existence and scope of any relevant public health orders.
- Health and safety issues and the reasons advanced in favour of the mandatory COVID-19 vaccine requirement.
- Issues relating to an employee’s disability or medical condition.
- The nature and extent of the disadvantage resulting from the imposition or proposed imposition of the mandatory COVID-19 vaccine requirement.
- The feasibility of overcoming or mitigating any disadvantage to the employee by the mandatory COVID-19 vaccine requirement.
- Whether the disadvantage to the employee is proportionate to the result sought by the employer.
- The nature of the work performed by the employee.
- Whether the employee has close contact with people who are most vulnerable to severe COVID-19 health impacts. For example, people working in aged care, disability care, health care, people over 60 or people with respiratory conditions.
- Whether the employee interacts with people with an elevated risk of being infected with COVID-19. For example, medical professionals, flight crew, border control or hotel quarantine workers.
- The incidence, severity and distribution of COVID-19 in the areas where the work is undertaken.
- The availability of the vaccine.
- Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 and COVID-19 vaccinations at the relevant times, including duties owed by employers to staff and customers under work health and safety laws.
- Whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as:
- testing regimes
- remote work
- physical distancing
- personal protective equipment.
The SDA, the DDA, the ADA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the employer.
The duty to provide reasonable adjustments
The DDA also creates an explicit duty to make ‘reasonable adjustments’ for people with disability, including at work. Depending on the circumstances of the case, a ‘reasonable adjustment’ may include exempting workers with disabilities, who have a medical reason for not being vaccinated, from a general rule requiring COVID-19 vaccination. Employers are not required to make adjustments for people with disability if the adjustments would impose an unjustifiable hardship on them. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.
What about ‘the inherent requirements’ of a role and other exemptions?
In responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Under the DDA, it is lawful for an employer to discriminate against a person on the ground of the person’s disability if the person is unable to carry out the ‘inherent requirements’ of a particular job or would, in order to do so, require services or facilities that would impose an ‘unjustifiable hardship’ on the employer.
Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a particular role that a person be vaccinated against COVID-19.
An employer may also seek to rely upon the ‘infectious diseases’ exemption in s 48 of the DDA. This provides that it is not unlawful to discriminate against a person if their disability is an infectious disease — or arguably the potential to acquire an infectious disease — and such discrimination is ‘reasonably necessary’ to protect public health.
In considering the term ‘reasonably necessary’, it is not likely to be sufficient that a discriminatory condition or policy is merely helpful, desirable or convenient in protecting public health.